Jimmy Hinkle v. Rick White

In the

United States Court of Appeals

For the Seventh Circuit

No. 14-2254

JIMMY HINKLE,

Plaintiff-Appellant,

v.

RICK WHITE and THOMAS OLIVERIO,

Defendants-Appellees.

Appeal from the United States District Court for the

Southern District of Illinois.

No. 12-CV-00133 — Michael J. Reagan, Chief Judge.

ARGUED DECEMBER 11, 2014 — DECIDED JULY 16, 2015

Before WOOD, Chief Judge, and FLAUM and MANION, Circuit

Judges.

MANION, Circuit Judge. Jimmy Hinkle sued Rick White, an

investigator with the Illinois State Police, and White’s supervi-

sor, Thomas Oliverio, alleging that they violated his due

process rights by spreading rumors that he was an arsonist and

a child molester. The district court concluded that Hinkle had

not established a protected liberty interest and granted the

defendants summary judgment. We affirm.

2 No. 14-2254

I.

In August 2010, while Jimmy Hinkle was finishing his

elected term as Sheriff of Wayne County, Illinois, his fourteen-

year-old step-daughter falsely accused him of sexually abusing

her while helping her apply chigger medicine.1 An officer with

the Charleston, Illinois Police Department interviewed the

step-daughter and the Illinois Department of Children and

Family Services (“DCFS”) notified the Illinois State Police that

it had received a report that Hinkle had sexually abused his

step-daughter.

Rick White, an investigator with the Illinois State Police,

began investigating the step-daughter’s allegations. White

interviewed the step-daughter and she repeated her claim of

sexual abuse. However, her sister (another of Hinkle’s step-

daughters) was also interviewed and she said that Hinkle had

also helped her apply chigger medication and that it was non-

sexual. She also said she thought her sister was lying because

Hinkle and her mom were too strict. White also interviewed

Hinkle, who denied the allegation. The step-daughter later

recanted her claim of sexual abuse on several occasions and an

Illinois prosecutor declined to press charges against Hinkle.

Nonetheless, the accusations became well-known in the

community because White talked to a lot of people with whom

he had no business sharing details of the investigation. For

1

Because this case comes to us at the summary judgment stage, we set

forth the facts in the light most favorable to the non-moving party, Hinkle.

Little v. Illinois Dept. of Revenue, 369 F.3d 1007, 1008 (7th Cir. 2004).

No. 14-2254 3

example, while at the local Wal-Mart in January 2011, White

told Roy Finley, his third cousin and a felon, to listen to the

news and that there would be a story about a former Wayne

County Sheriff,2 whom Finley was able to determine was

Hinkle from White’s comments. White told Finley that there

was a “bad charge” and that “the former sheriff would be

looking at prison time.” White also told Stephanie Luker, a

Trooper with the Illinois State Police, that there was a sexual

assault case against Sheriff Hinkle. (Luker was in no way

involved in the investigation of the matter.) Additionally,

White told Jonah Kinsolving, an investigator with the Secretary

of State’s Office (who also had nothing to do with the investi-

gation) that he (White) was investigating Hinkle for sexually

abusing his step-daughter. White told Kinsolving that he

(White) was right in believing Hinkle sexually abused his step-

daughter. Kinsolving went home and told his wife about it and

his wife in turn told her hairdresser.

If telling the local hairdresser wasn’t enough to churn the

rumor mill, word was also leaked to the local paper, the

Disclosure, at White’s instigation. White directed Greg Hanisch,

an inspector for the Southern Illinois Drug Task Force (who

worked out of the Illinois State Police station), to tell a local

reporter to look into the Kelly Henby and Hinkle matter.

Henby was apparently a private investigator who interviewed

the step-daughter and to whom she recanted. Hanisch leaked

2

While Hinkle was still the Sheriff at the time of his step-daughter’s false

allegations in August 2010, he had lost the February 2010 primary election

for Sheriff and was no longer serving as Sheriff at the time of White’s

conversation with Finley.

4 No. 14-2254

to the Disclosure that an arrest warrant had been issued for

Henby charging him with working as a private investigator

without a license. The Disclosure also published an article that

included details of the step-daughter’s initial claim of sexual

abuse, although the article, in essence, said the step-daughter

was lying and provided an innocent explanation for what

really happened, while positing that the information was made

public in retaliation for Henby and Hinkle crossing White on

other matters. Nonetheless, in the end, the rumor that Hinkle

was a child molester permeated the public sphere.

In addition to the rumor that Hinkle had sexually abused

his step-daughter, there was talk that Hinkle was also an

arsonist. A couple of months before his step-daughter falsely

accused him of sexually assaulting her, Hinkle’s home was

destroyed by a fire. White spoke with the State Fire Marshal

concerning the investigation into the cause of the fire and

asked a detective with the Wayne County Sheriff’s Department

whether he “suspected anything” about the fire. Thomas

Oliverio, a lieutenant with the Illinois State Police, went one

step further, saying to another investigator, “[h]ow much do

you want to bet me that [Hinkle’s] prize 1950 Chevy was not

in the garage when he burnt his house? … I’m telling you, he

moved that car from his garage before the fire.”

After his step-daughter recanted her accusation of sexual

abuse and the prosecutor declined to press charges, Hinkle

filed this § 1983 suit against White and Oliverio, alleging the

defendants denied him his right to liberty in the occupation of

his choice without due process of law. Specifically, Hinkle

alleged that the defendants, by spreading the rumors that he

was an arsonist and child molester, rendered him unable to

No. 14-2254 5

find a job in law enforcement management. The defendants

moved for summary judgment. The district court granted the

defendants summary judgment, concluding that Hinkle did

not establish a protected liberty interest. Hinkle appeals. We

review the district court’s grant of summary judgment de novo.

Simpson v. Beaver Dam Comm. Hosp., Inc., 780 F.3d 784, 789 (7th

Cir. 2015).

II.

The Fourteenth Amendment forbids a state from depriving

a person of “life, liberty, or property, without due process of

law.” U.S. Const. Amend. XIV § 1. To prevail on a procedural

due process claim, “a plaintiff must establish that a state actor

deprived him of a constitutionally protected liberty or property

interest without due process of law.” Dupuy v. Samuels, 397

F.3d 493, 503 (7th Cir. 2005). In evaluating a due process claim,

we ask two questions: 1) “whether there exists a liberty or

property interest which has been interfered with by the State;”

and 2) “whether the procedures attendant upon that depriva-

tion were constitutionally sufficient.” Id.

Hinkle claims he has a protected liberty interest to pursue

the occupation of his choice, namely law enforcement manage-

ment. “The concept of liberty protected by the due process

clause has long included occupational liberty—‘the liberty to

follow a trade, profession, or other calling.’” Wroblewski v. City

of Washburn, 965 F.2d 452, 455 (7th Cir. 1992) (quoting Lawson

v. Sheriff of Tippecanoe County, 725 F.2d 1136, 1138 (7th Cir.

1984)). However, “[i]t is the liberty to pursue a calling or

occupation, and not the right to a specific job, that is secured by

the Fourteenth Amendment.” Id. (emphasis added). Previ-

6 No. 14-2254

ously, “[w]e have declared that being a police officer is an

occupation; being a police lieutenant is not.” Wroblewski, 965

F.2d at 455 (quotation omitted). Thus, while “[t]o be a police-

man is to follow a particular calling and to be excluded from

that calling is an infringement of liberty of occupation, … a

particular rank in the police force is not an occupation … ”

Bigby v. City of Chicago, 766 F.2d 1053, 1057 (7th Cir. 1985). In

this case, Hinkle presented evidence that he applied for, and

was rejected for, five out-of-state Chief-of-Police jobs. “Chief of

Police” and “law enforcement management” equate more

closely to holding a particular rank or job in the police force,

than to following a particular calling. However, we need not

rest on this point. Even if we treat law enforcement manage-

ment as an occupation, as discussed below, Hinkle still cannot

succeed on his due process claim because he cannot show that

this liberty interest was “interfered with by the State.”

Hinkle claims the defendants interfered with his liberty

interest in his occupation by spreading rumors that he had

sexually abused his step-daughter and committed arson.

Reading the facts in the light most favorable to Hinkle, White

gravely harmed Hinkle’s reputation by his unprofessional

conduct that resulted in the step-daughter’s false claim of

sexual abuse becoming well-known in the community. It is less

clear whether Oliverio’s suggestion that Hinkle committed

arson was broadcast more broadly and also harmed his

reputation.3 But even assuming Oliverio likewise harmed

3

Hinkle also seeks to hold Oliverio responsible for White’s defamatory

statements because Oliverio supervised White and participated in portions

(continued...)

No. 14-2254 7

Hinkle’s reputation, “mere defamation by the government

does not deprive a person of ‘liberty’ protected by the Four-

teenth Amendment, even when it causes serious impairment

of one’s future employment.” Hojnacki v. Klein-Acosta, 285 F.3d

544, 548 (7th Cir. 2002). “Rather, it is only the ‘alteration of

legal status,’ such as government deprivation of a right

previously held, ‘which, combined with the injury resulting

from the defamation, justif[ies] the invocation of procedural

safeguards.’” Mann v. Vogel, 707 F.3d 872, 878 (7th Cir. 2013)

(quoting Paul v. Davis, 424 U.S. 693, 708–09 (1976)); Townsend

v. Vallas, 256 F.3d 661, 669 (7th Cir. 2001). Thus, we conduct a

“stigma-plus” analysis to determine whether there was “an

injury to reputation along with a change in legal status …”

Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1015 (7th Cir.

1990) (emphasis added).

In this case, the defendants did nothing to alter Hinkle’s

legal status. Rather, reading the facts in the light most favor-

able to Hinkle, the defendants defamed him. Even if that

defamation seriously impaired his future employment pros-

pects, the state did not alter his legal status. Thus, while Hinkle

3

(...continued)

of the investigation, such as the interviews of Hinkle. While Oliverio

participated in portions of the investigation, Hinkle did not present any

evidence that Oliverio facilitated, approved of, or condoned White’s

defamation. Thus, there is no supervisory liability for Oliverio based on

White’s defamatory statements. See Chavez v. Illinois State Police, 251 F.3d

612, 651 (7th Cir. 2001) (explaining that a supervisor is not liable for the

constitutional violations of a subordinate absent the supervisor’s personal

involvement in the unconstitutional conduct).

8 No. 14-2254

showed a serious stigma, without the “plus,” he cannot

maintain a due process claim for the denial of a liberty interest.

In response, Hinkle seemingly argues that he need not

show that the state altered his legal status because the defen-

dants’ defamation made it “virtually impossible” for him to

find new employment in upper-level management of police

work. In support of his position, Hinkle quotes our decisions

in Doyle v Camelot Care Ctrs., Inc., 305 F.3d 603, 617 (7th Cir.

2002), and Townsend, 256 F.3d at 670, wherein we said: “[W]hen

a state actor casts doubt on an individual’s ‘good name,

reputation, honor or integrity’ in such a manner that it be-

comes ‘virtually impossible for the [individual] to find new

employment in his chosen field,’ the government has infringed

upon that individual’s ‘liberty interest to pursue the occupa-

tion of his choice.’” Doyle, 305 F.3d at 617 (quoting Townsend,

256 F.3d at 670).

Hinkle, however, reads this language completely out of

context. In Doyle, two child-care workers sued various state

actors after they were “indicated” for child abuse or neglect,

their names were placed on a central registry, they were fired

from their jobs, and were in essence blacklisted from child-care

employment. As a result of their “indicated” status, the

plaintiffs were fired. It was in this context that Doyle, quoting

Townsend, spoke of it becoming “virtually impossible for the

[individual] to find new employment in his chosen field.”

Doyle, 305 F.3d at 617. But the state in Doyle had also altered the

plaintiffs’ legal status by indicating them for child abuse and

child neglect on its central registry. Thus, Doyle does not stand

for the broader proposition that defamation by state actors

No. 14-2254 9

which forecloses employment in their field of choice consti-

tutes the denial of a liberty interest.

Townsend, which Doyle quoted (and on which Hinkle also

relies), more clearly demonstrates that defamation, even if it

forecloses employment in a field or profession, is not action-

able as a Due Process claim. In Townsend, Alex Riley, a part-

time lifeguard and high school swimming coach, sued the

school’s Board of Trustees and two individual administrators,

claiming:

the defendants deprived him of a liberty interest in

his occupation when they dismissed him from his

position … and then made statements to the Chicago

Sun-Times, … to the effect that Mr. Riley should not

be rehired by the Board due to his “failure to per-

form duties” in the events surrounding [a student’s]

death.

Townsend, 256 F.3d at 669.

In discussing Riley’s liberty interest claim, this court

explained that the Supreme Court has “held that the state may

infringe a plaintiff’s liberty interest when, in declining to rehire

an employee, it makes a ‘charge against him that might seriously

damage his standing and associations in his community’ that

places his ‘good name, reputation, honor, or integrity … at

stake’ or when, in failing to rehire, it imposes on the plaintiff ‘a

stigma or other disability that foreclosed his freedom to take

advantage of other employment opportunities.’” Townsend, 256

F.3d at 669 (quoting Board of Regents v. Roth, 408 U.S. 564, 573

(1972)) (emphasis added). This court continued:

10 No. 14-2254

at the heart of every claim that an employer has

infringed an employee’s liberty of occupation, is a

charge that the “circumstances of that discharge, at

least if they were publically stated, had the effect of

blacklisting the employee from employment in

comparable jobs.” In such cases, the employee’s good

name, reputation, honor or integrity must be called

into question in a manner that makes it virtually

impossible for the employee to find new employ-

ment in his chosen field.

Townsend, 256 F.3d at 670 (quoting Colaizzi v. Walker, 812 F.2d

304, 307 (7th Cir. 1987)) (emphasis added).

The “virtually impossible for the employee to find new

employment” language from Townsend, quoted by Doyle and

relied upon by Hinkle, was used in the context of “such cases”

where the state declined to rehire the individual or discharged

the individual. See also Lashbrook v. Oerkfitz, 65 F.3d 1339,

1348–49 (7th Cir. 1995) (“However, to infringe an employee’s

liberty interests, the circumstances of the termination must make

it virtually impossible for the employee to find new employ-

ment in that field.”). On several occasions since then, in

discussing a liberty interest in an occupation, this court has

quoted the boilerplate “virtually impossible for the [individ-

ual] to find new employment in his chosen field” language of

Townsend. See, e.g., Khan v. Bland, 630 F.3d 519, 535 (7th Cir.

2010); McMahon v. Kindlarski, 512 F.3d 983, 988 (7th Cir. 2008);

RJB Properties, Inc. v. Board of Educ. of City of Chicago, 468 F.3d

1005, 1011 (7th Cir. 2006); Brown v. City of Michigan City,

Indiana, 462 F.3d 720, 730 (7th Cir. 2006). But this court has

never held that the State infringes on a plaintiff’s liberty interest

No. 14-2254 11

when the defamation alone renders it “virtually impossible for

the [individual] to find new employment in his chosen field.”

Townsend, 256 F.3d at 670; see Bryn Mawr Care, Inc. v. Sebelius,

749 F.3d 592, 598 n.4 (7th Cir. 2014) (“We do not decide

whether defamation ‘in a manner that makes it virtually

impossible for [plaintiff] to’ operate ‘in [its] chosen field’ is

sufficient to amount to a deprivation of a constitutionally

protected right …”).

Nor could such a holding be reconciled with the Supreme

Court’s decision in Paul v. Davis, 424 U.S. 693 (1976), from

which our stigma-plus line of cases descends. See Colaizzi, 542

F.2d at 973 (stating “[a]s we read Paul v. Davis, stigma to one’s

reputation, inflicted by the state, is not of itself a deprivation of

liberty within the meaning of the Fourteenth Amendment,”

and coining “stigma-plus” as shorthand for the standard of

Paul). In Paul, Edward Davis sued the Chiefs of Police of

Louisville and Jefferson County, Kentucky after they circulated

a “flyer” to nearly 800 merchants which included his name and

photograph under the moniker “Active Shoplifters.” At the

time the flyer had been distributed, the charges were merely

pending—Davis had not been convicted of shoplifting. The

charges were eventually dismissed, but not before Davis’s

supervisor had seen the flyer and, while not firing him, warned

him “he had best not find himself in a similar situation” in the

future.” Id. at 696. Davis sued the police chiefs, alleging among

other things that the flyer deprived him of liberty within the

meaning of the Fourteenth Amendment.

In considering Davis’s argument, the Supreme Court in

Paul analyzed a number of its prior cases which looked at

defamation by the government in a variety of contexts. After

12 No. 14-2254

summarizing the relevant precedent, the Supreme Court

stressed “[i]n each of these cases, as a result of the state action

complained of, a right or status previously recognized by state

law was distinctly altered or extinguished.” Id. at 711. The

Court continued: “It was this alteration, officially removing the

interest from the recognition and protection previously afford

by the State, which we found sufficient to invoke the proce-

dural guarantees contained in the Due Process Clause of the

Fourteenth Amendment.” Id. The Court then concluded that

because Paul did not “assert denial of any right vouchsafed to

him by the State, … [the defendant’s] defamatory publications,

however seriously they may have harmed [Paul’s] reputation,

did not deprive him of any ‘liberty’ or ‘property’ interests

protected by the Due Process Clause.” Id. at 712.

This analysis makes clear that to claim a deprivation of

liberty, the state must “distinctly alter” or “extinguish” a right

or status previously recognized by state law. Defamation

alone, even if it renders it “virtually impossible for the [indi-

vidual] to find new employment in his chosen field,” Townsend,

256 F.3d at 670, thus is not enough to invoke the procedural

safeguards of the Fourteenth Amendment. “Rather [a plain-

tiff’s] interest in reputation is simply one of a number which

the State may protect against injury by virtue of its tort law,

providing a forum for vindication of those interests by means

of damages actions.” Paul, 424 U.S. at 712.

Alternatively, Hinkle attempts to fit his case within this

Supreme Court precedent by arguing that the defendants’

defamatory statements altered his “legal status” by rendering

him unqualified to serve in law enforcement management. In

support of this argument, Hinkle cites 65 ILCS 5/10-2.16(j),

No. 14-2254 13

which provides: “No person shall be appointed to the police or

fire department unless he or she is a person of good character

and not an habitual drunkard, gambler, or a person convicted

of a felony or crime involving moral turpitude.” Hinkle argues

that the defendants’ defamation branded him a person not of

good character and thereby barred him from employment in

his chosen profession.

Hinkle’s argument is misplaced. The defendants did not

“distinctly alter” or “extinguish” Hinkle’s “legal status.” They

defamed him. They did not place Hinkle’s name on a list which

by statute removed a previously held right to serve in law

enforcement management. This situation thus contrasts

sharply with the cases involving an alteration in legal status.

For instance, in Wisconsin v. Constantineau, 400 U.S. 433 (1971),

on which Hinkle also relies, the defendants “posted” the

plaintiff’s name to a list which, by statute, removed his right to

purchase alcoholic beverages. Id. at 435. As the Supreme Court

explained, “it was that alteration of legal status, which,

combined with the injury resulting from the defamation,

justified the invocation of procedural safeguards.” Paul, 424

U.S. at 708–09 (emphasis added) (citing Constantineau, 400 U.S.

433).

Moreover, Hinkle received a license in Illinois to work as a

private investigator, and by statute he was required to be “of

good moral character” to qualify for such a license. 225 ILCS

447/15-10(a)(3).This fact further negates Hinkle’s claim that the

defendants’ defamation rendered him unqualified under

Illinois law to serve in law enforcement. For all of these

reasons, the defendants did not “distinctly alter” or “extin-

guish” Hinkle’s legal status and thus he has no liberty interest

14 No. 14-2254

for purposes of the Due Process Clause of the Constitution.4

Accordingly, the district court properly granted the defendants

summary judgment on Hinkle’s due process claim.

III.

Reading the facts in the light most favorable to Hinkle, the

defendants defamed him—horribly so. But the Due Process

Clause of the Constitution does not provide a remedy for

defamation, even of the worst kind. Rather, to establish his due

process claim, Hinkle needed to show a liberty interest with

which the defendants interfered. While there is a liberty

interest in following one’s trade or profession, the government

does not deprive a plaintiff of such an interest by defamation

alone. The defamation must combine with an alteration or

removal of a legal status. Hinkle did not show any alteration of

his legal status and thus cannot succeed on his due process

claim. Accordingly, the district court properly granted the

defendants summary judgment. We AFFIRM.

4

Hinkle also presented evidence that the defendants’ conduct caused

customers to stop patronizing a restaurant run by his son in which he had

a financial interest. But Hinkle did not present any evidence that the

defendants somehow altered his legal status in a way that would prevent

him from opening up, or investing in, another restaurant. Accordingly,

Hinkle also cannot show that the defendants violated any purported liberty

interest in the occupation of restaurateur.